9. The Statute of Montana, declaring "that an issue of fact shall be tried by a jury unless a jury trial is waived," does not require the court, in an equity case, to regard the findings of a jury called in the case as conclusive, although no application to vacate the findings be made by the parties, if, in its judgments, they are not supported by the evi- dence. Idem, 452
10. A recovery in an equitable action must be had upon the case made by the pleadings or not at all.
471 11. When two or more persons have a common interest in a security, equity will not allow one to appropriate it exclusively to himself, or to impair its worth to the others.
12. A court of equity will not give relief by charging the executor of a will or a legatee, or a devisee of real estate with a trust, in favor of a third person alleged to be defrauded by the forged or fraudulent will, nor will it give relief to parties who are in laches.
599 13. Ignorance of a fraud, is no excuse for laches where the circumstances of the fraud were pub- licly and generally known.
SEE APPEAL AND ERROR, passim.
ESTOPPEL.
SEE ATTORNEY, 2.
CONFISCATION, 13.
CORPORATIONS, 8.
1. Defendants are not estopped from claiming under a deed to their grantor, because such grantor had accepted mortgages on the land to secure his debts, executed by his grantor.
2. Where one assigned all his interest in a patent to S. and then executed another assignment to D., and then S. re-assigned to his assignor, the latter is estopped as against D. and his assignee from claiming any interest in the patent.
3. Where a party accepts the amount awarded by commissioners for his claim, he acquiesces in the decision of the tribunal by which a part of the claim is rejected, as well as in the finding in his favor.
2. Where the writ of mandamus is unavailing for, tiller, when sued for it, can set up the defense that such purpose, this court has no authority to ap- the tax was illegally assessed. point its own officer to levy and collect the tax.
3. The Internal Revenue Act of July 13, 1866, authorizes the levy and collection of a tax upon the accumulated earnings of a savings bank, carried to the contingent fund.
80 4. An action of debt is maintainable in the cir- cuit court by the United States for the recovery of the taxes. Idem,
Savings Bank v. United States.
80 5. No other assessment than that made by the statute was necessary to determine the extent of the bank's liability.
SO 6. The Legislature of a State can provide for the taxation of the owners of shares of the capital stock of a national bank, at the place within the State, where the bank was located, without regard to their places of residence.
Tappan v. Merchant's National Bank, 189 7. The power of taxation by any State is limited to persons, property or business within its jurisdic tion.
189 8. Personal property, in the absence of a statute to the contrary, follows the person of the owner, and has its situs at his domicil. But, for the pur- poses of taxation, it may be separated from him, and he may be taxed on its account at the place where it is actually located. Idem,
21. Where the State has power to impose a tax, the extent and the proportion to which it is im- posed belongs to the judgment and discretion of the State only. It is beyond the examination of this court.
22. The Erie Railway Co. is liable to the tax im- posed by the Pennsylvania Act of May, 1868. idem, 595
23. The term "capital," employed by a banker in the business of banking, in the 110th section of the Revenue Act of July 13, 1866, does not include moneys borrowed by him from time to time tem- porarily, in the ordinary course of his business, and such moneys are not liable to taxation as capital. Bailey v. Clark, 651
24. The contingent right of pre-emption in lands granted to the Pacific Railroad Company, does not constitute an exemption of those lands from state taxation. 747 Union & P. R. R. Co. v. McShane,
25. But the lands on which the costs of survey have not been paid, and for which the United States has not issued a patent to the company, are exempt from state taxation.
26. But where the government has issued the patent, the lands are taxable, whether payment of these costs have been made to the United States or not. 747
27. The Secretary of the Treasury. in paying a judgment of the Court of Claims, cannot deduct from it the amount due to the government for an internal revenue tax on the property for which such judgment was rendered.
28. Where the depositors in a savings bank con- tracted not for a rate of interest upon their de- posits, but for a share of the profits, although the profits were derived from interest, yet the portion divided to each was a dividend, and liable to a tax, under the Act of 1864, as amended in 1866. Cary v. Savings Union, 779
29. Where the United States granted lands to a State to aid in the construction of railroads and the State accepted the grant, it cannot tax the land while the title remained in the United States, nor while it held them as the trustee of the United States. S05
30. But when the State proceeding in the execu- tion of the trust, had transferred its entire title to a railroad company, and the company had per- fected their title and acquired the right to sell the lands, they were subject to state taxation. 805
31. A state Act which imposes a tax with refer- ence to the railroad itself, does not im ose a tax upon the lands owned by the company not used nor necessary in operating the road.
32. A provision in a state Act exempting the lands specified from local taxation for three years, where there was no consideration, was the promise of a gratuity spontaneously made, which might be kept, changed or recalled at pleasure. 805 33. The taxing power may be restrained by con- tract in special cases for the public good. Idem, 805 34. Where the contract exists it is to be rigidly scrutinized, and never permitted to extend, either in scope or duration, beyond what the terms of the concession clearly require. 805
35. Certificates issued by a railroad company to its stockholders declaring that such stockholders are entitled to 80 per cent. of the capital stock held by them, with dividends thereon, are dividends of scrip within the meaning of the Internal Revenue Act levying a tax on dividends, and liable to such tax.
36. It is too late to object that the n assessment was irregular, after an app Idem,
37. Where. by the charter of a ra exemption from taxation was gir was in operation two years, such road was liable to count tion.
Bailey v. Magwire, 38. An intention of th
31. Where the record shows jurisdiction, an ad-, set aside, the United States held the land as if no judication of bankruptcy can only be assailed by a entry had been made, and could grant it again. direct proceeding in a competent court. McCarthy v. Mann,
832 32. Where the court has jurisdiction in per- sonam, it has power to require the defendant to do or to refrain from doing anything beyond the limits of its territorial jurisdiction, which it might require to be done or omitted within the limits of such territory.
857 33. Whether a state court acted within its juris- diction or not, is a question exclusively for the state tribunals.
Mech. & Tr. Bank v. Union Bank,
SEE APPEAL AND ERROR, 15.
CONFISCATION, 10.
CONSTITUTIONAL LAW, 11. EVIDENCE, 11.
PRACTICE, 23, 24.
1. Without a written agreement to waive a jury, and in the absence of the defendant's counsel, the court cannot try the case without a jury.
2. A request to charge the jury, which did not correctly describe or erroneously construed the in- vention of plaintiff, and which erroneously as- sumed the law of the case, was properly refused. Klein v. Russell,
3. Where the charge already given has fully covered the ground, and is in accordance with the request to charge, the request was properly refused. Idem, 116 4. If there be no evidence to support the theory of fact assumed in a prayer for instruction to a jury, the court should reject it.
5. Where the instructions given to the jury cov- ered the whole case it is not the duty of the judge to give others suggested by either party.
6. Where the evidence is not sufficient to justify a jury in finding a verdict for plaintiff, and the court can see that if a verdict for plaintiff should be rendered, it ought to be set aside as being un- warranted by the testimony, the court may instruct the jury to find for defendant. Pleasants v. Fant,
LANDLORD AND TENANT.
6. Under the Act of the 3d of March, 1863, by which the Solicitors of the Treasury is authorized to sell, with the approval of the Secretary of the Treasury, certain lands of the U. S., his approval is a condition precedent without which the solicitor has no authority whatever to sell. U. S. v. Jonas, 177 7. The purchaser may require written evidence of this approval or he may refuse to accept the deed. Idem, 177 8. The United States may maintain an action to recover logs sold by Indians from their reservation to a third person, where the logs were not cut for the improvement of the land.
10. The Indians having only a right of occupancy in the lands, the presumption is against their au- thority to cut and sell the timber. Every pur- chaser from them is charged with notice of this presumption.
210 11. To maintain his title under his purchase it is incumbent on the purchaser to show that the timber was rightfully severed from the land. Idem, 210 12. The issue of a patent upon the award of the 2. Where a tenant sold crops covered by a mort-register and receiver, sanctioned by the commis- gage clause in the lease, to a vendee who had ful! sioner of the General Land Office, is final and con- notice of such clause, the crops went into his hands clusive as between the United States and several impressed with the lien thereof, and when he sold claimants, and passes the title to the patentee. them, he took the proceeds in trust for the pur- Warren v. Van Brunt, chaser of said premises at the sheriff's sale, and became liable to him for the amount.
15. An entry cannot be made under the pre-emd- tion laws by one in trust for another, and a court of equity can not decree that it was so made. Idem, 219
16. The Act of June 3, 1856 and the Act of May 5, 1864, granting lands to Wisconsin to aid in building railroads, are grants in presenti and pass the title to the odd sections designated to be after- wards located; when located the title acquires pre- cision and becomes attached to the land, Schulenberg v. Harriman, Schow v. Harriman,
17. The lands granted do not revert to the United States, although the road was not constructed with- in the period prescribed, no action having been taken, either by legislation or judicial proceeding to enforce the forfeiture of the grants.
18. The provision in the Act of 1856, that all lands remaining unsold after ten years shall revert to the United States if the road be not then com- pleted, is a condition subsequent.
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